Cite as: 511 U. S. 39 (1994)
Kennedy, J., concurring in judgment
of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence." (Emphasis added.)
The Court construes the term "original sentence" to refer to the maximum sentence of imprisonment available under the Guidelines at the initial sentencing. I accept, in substantial part, The Chief Justice's critique of the Court's strained interpretation, and agree with him that "original sentence" refers to the sentence of probation a defendant in fact received at the initial sentencing. It is true that the term "original sentence," standing alone, could be read to encompass the entire original sentence, including any fine imposed. When considered in context, however, it is preferable to construe the term to refer only to the original sentence of probation. The proviso instructs the district court to "revoke the sentence of probation," but says nothing about the fine imposed at the initial sentencing. Given this, the subsequent reference to "one-third of the original sentence" is better read to mean the probation component of the original sentence, and not the whole sentence.
I disagree with both the Court and The Chief Justice, however, in their conclusion that the verb "sentence" in the proviso means only "sentence to imprisonment." Given the statutory text and structure, the verb "sentence" can mean either "sentence to probation" or "sentence to imprisonment." It follows, in my view, that the drug proviso calls for a mandatory minimum sentence equal to a probation term one-third the length of the original term of probation.
Before 1984, fines and imprisonment were the only sentences in the federal system; probation, by contrast, was an alternative to sentencing. See 18 U. S. C. § 3651 (1982). In the Sentencing Reform Act of 1984, Congress altered this understanding and made probation a kind of sentence. See § 3561(a) (defendant "may be sentenced to a term of proba-
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